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PETITIONER: CHARAN LAL SAHU

       Vs.

RESPONDENT: NANDKISHORE BHATT & ORS.

DATE OF JUDGMENT01/08/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1973 AIR 2464            1974 SCR  (1) 294  1973 SCC  (2) 530  CITATOR INFO :  R          1973 SC2513  (10)  R          1974 SC 480  (23)  RF         1974 SC1185  (16)  R          1981 SC1199  (3)  RF         1983 SC 558  (26)  R          1984 SC 135  (8)  F          1984 SC 309  (24)

ACT: Representation  of the People Act, 1951,Section  117-Failure to  deposit  security at time of  presentation  of  election petition-Election petition dismissed Held, Provisions of  S. 117 are mandatory.

HEADNOTE: The  respondents were elected as members of the  Legislative Council  of  Madhya Pradesh in the elections held  in  1972. The  appellant  presented an election petition on  June  26, 1972  but  did not deposit Rs. 2000/- security  as  required ,under  s.  117 of the Act.  The High  Court  dismissed  the election  petition  holding that it was  mandatory  for  the petitioner  when filing an election petition to deposit  the amount of Rs. 2000/- under s. 117 of the Act and there is no provision  ,under  which a discretion was conferred  on  the High  Court  to  reduce the amount of  security  deposit  as prayed  for by him.  On appeal I by special leave,  to  this Court, the appellant contended that : (i) the petition could only  be dismissed ,after the trial commenced and the  trial commences only after notices are issued to the  respondents; and  (ii) the provisions of s. 117 of the Act are  directory and not mandatory in character. Dismissing the appeal, HELD  :  (i) The reference to trial in section 86  is  in  a larger sense and deals with the steps in a trial rather than in  a narrower sense of a trial commencing after the  notice of the petition is directed to be served on the  respondent. The  marginal  note  of s. 86  namely,  "Trial  of  election petitions"  does  not  indicate that  ,:under  s.  86(1)  an election  petition  cannot be dismissed  for  non-compliance with the provisions set out therein, unless notice is issued to the respondent.  The language of s. 86(1) is clear as  to admit of no other meaning, and the marginal ,note cannot  be

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read to control that power. [298B-D] (2)..The  provisions of s. 117 of the Act are  mandatory  in character.   The ,High Court is not competent to reduce  the amount of security deposit or to dispense with it.  The non- deposit  of  the security along with the  election  petition leaves  no option to the court but to reject it.  The  right conferred to challenge an election being a statutory  right, the terms of that statute have to be complied ,with.  [296C, D-E] K . Kamaraja Nadar v. Kunju Thevar and Others, [1959] S.C.R. 583  and  Lalaram  v. The Supreme Court of  India  and  Ors. A.I.R. 1967 S.C. 847, distinguished. N. P. Ponnuswami v. Returning Officer, Namakkal Constituence and Others [1952] S.C.R. 218, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2411  of 1972. Appeal  under s. 116-A of the Representation of  the  People Act from the judgment and order dated September 22, 1972  of the  Madhya  Pradesh  High Court  at  Jabalpur  in  Election Petition No. 49, of 1972. Pramodh Swarup, for the, appellant. G.   N. Dikshit and R. N. Dikshit, for respondents Nos.  1 & 5. S.   K. Gambhir, for respondent No. 4 The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-This appeal is against an order of  the High Court of Madhya Pradesh by which the election  petition filed by the appellant was dismissed for failure to  deposit the security as required under s. 117 of the  Representation of the People Act, 1951- 29 5 hereinafter called ’the Act’.  The facts in brief are,  that for  the  elections  held in 1972 respondents 1  to  5  were elected  as members  of  Legislative  Council  of   Madhya Pradesh.   The appellant presented an election  petition  on June  26,  1972, but did not deposit Rs.  2000/’security  as required under s. 117 of the Act, which inter alia  provides as follows               "117.  Security for costs.-(1) At the time  of               presenting    an   election   petition,    the               petitioner shall deposit in the High Court  in               accordance with the rules of the High Court  a               sum of two thousand rupees as security for the               costs of the petition.               (2)...During  the  course of the trial  of  an               election petition, the High Court may, at  any               time,  call upon the, petitioner to give  such               further security for costs as it may direct." It   was   contended   before  the   High   Court   by   the petitioner/appellant that the trial had not started; that s. 1  1  7 of the Act is only directory and not  mandatory  and that  the deposit of Rs. 2000/- is only to secure the  costs in the course of the trial of the election petition, as such dismissal  of the petition for non-compliance with it  is  a penalty  which is not one of the penalties prescribed  under s.  1  1 8 of the Act.  The High Court  rejected  all  these contentions holding that it was mandatory for the petitioner when  filing an election petition to deposit the  amount  of Rs. 2000/- under s. 117 of the Act and there is no Provision under which a discretion was conferred on the High Court  to reduce the amount of security deposit as prayed for by  him.

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The High Court referred to sub-s. (2) of s. 117 under  which the  High  Court  has  been  empowered  to  call  upon   the petitioner to give such further security for costs as it may direct,  which clearly indicates that while there is a  pro- vision empowering the High Court to call upon the petitioner to  give  such  further  security for  costs,  there  is  no provision similarly empowering it to absolve the  petitioner from  making  any security deposit or to reduce  the  amount required  to be deposited under the Act.  We think the  High Court  was  right  in holding that it is  not  competent  to reduce  the amount of security deposit or to  dispense  with it. It  was  contended before us that the petition can  only  be dismissed after the trial commenced and the trial  commences only  after  notices  are issued  to  the  respondents.   In support of this. proposition, provisions of the repealed  s. 85 of the Act are referred to.  We are unable to  appreciate how the repealed s. 85 of the-Act furthers the submission of the  petitioner or has any relevance.  It is  apparent  that prior  to  repeat  by Act 47 of 1966,  s.  81  provided  for the.presentation  of the election petition by any  candidate aggrieved  by  the result of the election  to  the  Election Commission;  s.  83  prescribed what  the  contents  of  the petition should be; and s. 85 provided :               "If  the provisions of section 81, section  83               or  section  117  are not  complied  with  the               Election Commission shall dismiss the petition               :               Provided that if a person making the  petition               satisfies   the   Election   possession   that               sufficient cause existed for his               296               failure  to  present the petition  within  the               period   prescribed  therefor,  the   Election               Commission may in its discretion condone  such               failure." Presentation  of  the  petition under the  repealed  s.  81, beyond  the period prescribed for its presentation could  be condoned by the Election Commission in its discretion  under the  proviso to the repealed s. 85 of the Act, but there  is nothing  in s. 85 which permits the Election  Commission  to condone  the non-compliance with the provisions of  s.  117. Before  the amendment of the Act in 1966, once the  Election Commission  finds the election petition to be in  order  and does not dismiss it under s. 85 for non-compliance with  the requirements  of  ss. 81, 83 and 117, it has to  appoint  an Election Tribunal for the trial of the petition.  The  trial by the Tribunal therefore is only after compliance with  the mandatory  provisions  prescribed in ss. 81, 83 and  117  so that  the  trial is unrelated to the non-compliance  by  the petitioner  with  the  requirements of s.  117.   After  the amendment, the jurisdiction of both the Election  Commission and  the Tribunal in respect of election disputes  has  been abolished and the High Courts of respective States have been vested  with  the  jurisdiction in  this  regard.   But  the conferment  of jurisdiction to entertain, try and  determine an election petition has not in any way materially  affected the posit on stated by us, as will be presently indicated. The  right to challenge an election is a right  provided  by Art.  329 (b) of the Constitution of India,  which  provides that  no  election to either House of Parliament or  to  the House or either House of the Legislature of a State shall be called in question except by an election petition  presented to such authority and in such manner as may be provided for by  or  under any law made by the  appropriate  Legislature.

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The  right conferred being a statutory right, the  terms  of that statute had to be complied with.  There is no  question of  any  common  law right to challenge  an  election.   Any discretion  to  condone  the delay in  presentation  of  the petition  or  to  absolve the  petitioner  from  payment  of security  for costs can only be provided under  the  statute governing election disputes.  If no discretion is  conferred in  respect of any of these matters, none can  be  exercised under  any general law or on any principle of equity.   This Court  has  held  that  the right to  vote  or  stand  as  a candidate  for  election  is  not a civil  right  but  is  a creature  of statute or special law and must be  subject  to the  limitations  imposed  by it.  In N.  P.  Ponnuswami  v. Returning  Officer, Namekkal Constituency and  Others(1)  it was pointed out that strictly speaking, it is the sole right of  the  Legislature to examine and  determine  all  matters relating  to  the election of its own members,  and  if  the Legislature  takes  it out of its own hands and vests  in  a special  tribunal an entirely new and unknown  jurisdiction, that special jurisdiction should be exercised in  accordance with the law which creates it. On behalf of the appellant the case of K. Kamaraja Nadar  v. Kunju Thevar and Others (2 ) has been relied upon in support of  the submission that the provisions of s. 117 of the  Act are  directory  and not mandatory in  their  character.   An examination of this decision (1) [1952] S.C.R 218 (2) [1959] S.C,R, 583 297 does not support this contention of the appellant.  That was a case under the unamended s. 117 of the Act under which the petitioner  was  required  to enclose with  the  petition  a Government  Treasury receipt showing that a deposit  of  one thousand rupees had been made by him either in a  Government Treasury  or in the Reserve Bank of India in favour  of  the Secretary  to  the Election Commission as security  for  the costs of the petition.  The petitioner therein had deposited Rs. 1000/but had not mentioned the complete head of  account in the Government Treasury receipt nor was the deposit  made in  favour  of the Secretary to the Election  Commission  as laid down in the aforesaid section.  The Election Commission discussed this defect and left the question to the  Tribunal to decide after hearing the parties whether the defect could be  treated  as fatal or one that could be  cured  by  fresh deposit  or  otherwise  so as to secure  the  costs  of  the candidate  if eventually awarded to him.  The Tribunal  held that  there  Was  no defect in the matter  of  the  head  of account  and was further of opinion that nonmention  of  the fact  that the deposit was made in favour of the  secretary, to  the  Election Commission was immaterial in that  it  was taken to have been made in favour of the Election Commission at whose disposal the fund was placed, and accordingly there was sufficient compliance with the requirements of s. 117 of the Act.  In that case this Court after examining in  detail the  procedure   relating  to the  filing  of  the  election petition obesrved at p.606:               "It would be absurd to imagine that a  deposit               made either in  a  Government Treasury  or  in               the Reserve Bank of India in   favour  of  the               Election   Commission  itself  would  not   be               sufficient  compliance with the provisions  of               s.  117 and would involve a dismissal  of  the               petition  under s. 85 or s. 90(3).  The  above               illustration is sufficient to demonstrate that               the  words "in favour of the Secretary to  the

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             ’Election  Commission"  used  in  s.  117  are               directory   and   not   mandatory   in   their               character.   What  is of the  essence  of  the               provision  contained  in s. 117  is  that  the               petitioner  should  furnish security  for  the               costs  of  the petition,  and  should  enclose               along with the petition a Government  Treasury               receipt showing that a deposit of one thousand               rupees  has  been  made by  him  either  in  a               Government Treasury or in the Reserve Bank  of               India,  is  at the disposal  of  the  Election               Commission to be utilised by it in the  manner               authorised by law and is under its control and               payable on a proper appliaction being made  in               that  behalf to the Election Commission or  to               any  person duly autborised by it  to  receive               the same, be he the Secretary to the  Election               Commission or any one else." This  decision,  therefore, cannot come to the rescue  of  a petitioner  who  has  failed  to  deposit  the  security  as required  under s. 117 of the Act or has paid less than  the amount  specified therein.  The decision in Lalaram  v.  The Supreme  Court of India and Others(’,) has no  relevance  to the matter in issue because as pointed out by the High Court that  case relates to security being furnished for filing  a review petition under the Supreme Court Rules, which  stands on a different footing. (1)  AIR 1967 SC 847 298 The argument of the appellant’s advocate that in view of the marginal  note  to  s.  86 election  petition  can  only  be dismissed  after the trial has commenced by the issue  of  a notice  to  the  respondent is  equally  without  substance. Amended  s.  86 apart from sub-s. (1) provides  for  several matters  in sub ss. (2) to (7) such as for reference of  the election petition or election petitions, where there is more than  one in respect of the same election, to a  Judge,  the ordering of security for costs in case of the application by a  candidate  who is not already a respondent being  made  a respondent,  the permission to amend or amplify  particulars of  any  corrupt  practice  alleged  in  the  petition,  the continuance  of the trial of the election petition from  day to day and its expeditious trial to be concluded as, far  as possible  within  six months from the  presentation  of  the petition to the High Court.  The reference to trial is in  a larger sense and deals with the steps in a trial rather than in  a narrower sense of a trial commencing after the  notice of the petition is directed to be served on the  respondent. The  marginal  note  of s. 86, namely,  "Trial  of  election petitions" does not indicate that under sub-s. (1) of s.  86 an election petition cannot be dismissed for  non-compliance with the provisions set out therein, unless notice is issued to  the  respondent.  Where the language is  clear  and  can admit  of no other meaning such as is evidence  from  sub-s. (1) of s. 86, the marginal cannot be read’, to control that- power. We  are  clearly  of the view that the  non-deposit  of  the security along with the election petition as required  under s.  117  of  the Act leaves no option to the  Court  but  to reject it.  The appeal is accordingly dis- missed with costs. S.B.W. Appeal dismissed. 299

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